Dear Counselor: Elder Care Can Trigger Many Family Conflicts

Question: I live outside of California, but I come to Davis a few times a year to see my 89-year-old mother who still lives in the same house in which she raised our family. My dad passed away some years ago, but my mom has done well until recently, when she suffered some falls.

My brother is 57 years old and lives with her. He has never really been self-sufficient, and he has lost as many jobs as he ever held. My mother has covered most, if not all, of his expenses, and my mother just told me that he is now “helping” her pay the bills.

Things came to a head recently when my sister and I told our brother that, after her last fall, we think our mom should move into an assisted-living environment and that we would likely need all of her income to pay for that care. My brother opposes the idea, but I believe he is placing his own interests ahead of my mother’s. He has convinced her that she will be better off staying at home.

When I try to tell my brother that assisted living will be best for her and how he can’t expect to live off her forever, he gets mad and does his best to make me feel guilty about how he’s the one caring for her day-to-day and about how I don’t know what’s really going on.

How can I make sure that my mother’s wishes are really respected?

Answer: Even though your mother is 89 years old, it appears that she is still capable of making her own decisions. If she decides that she wants to remain in her house under your brother’s care, then that is her decision. The issue, however, is whether that truly is her decision, or whether your brother is unduly influencing her decision in order to continue to live off her earnings.

If, as you suggest, your mother is handing over control of her finances to your brother, you will want to address this problem immediately. You should see whether your mother has a power of attorney for financial management.

If she designated you or your sister as her agents, you will want to exercise that authority and take over the duty of paying her bills from your brother. If your brother is the agent under her power of attorney, you will want to remind him of his legal responsibility to your mother.

The situation with your brother is not uncommon, and siblings can have very different views of the facts. Caring for an aging parent can be incredibly time-consuming, stressful and expensive.

Although your brother may not be a trained in-home health-care worker, he likely provides some level of care and supervision to your mother that you and your sister should appreciate. That said, some children in your brother’s position, particularly those in control of an elder’s finances, can cross a line and develop a sense of entitlement, helping themselves to more than what is reasonable. This is where financial elder abuse may become an issue.

When we think of financial elder abuse, we tend to think of a stranger perpetrating some fraudulent scheme. But the statistics show that most financial abuse is at the hands of the elder’s relatives. The typical example is the family member who brazenly purchases an expensive piece of property with the elder’s money.

But the situation with your brother may be difficult to bring in a lawsuit because you will have to show that he has taken property in small amounts over a long period of time. That may require a full forensic accounting of all your mother’s expenses. Your brother’s defense to each charge will be that the charge was incurred for your mother’s benefit or your mother authorized him to incur that expense.

The issues you raise are not easy, and it appears that your family may be headed toward real conflict. Court proceedings in a matter like this can be divisive and incredibly expensive.

You should seriously consider enlisting the help of a professional mediator and trying to address these issues in that setting. The mediator, a neutral third party, may be able to propose some resolution in which all parties’ interests are met. The process takes a lot of work, but it’s worth it as it might just hold the family together.

Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm providing family law, estate planning and trust litigation representation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at https://kopperlaw.com.

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